Wright, Executrix, et al. v. Manns et al. complaint herein were considered to some extent by this court. After quoting section 66 of Freeman on Judgments, it is there said: "These appellants, Wright and Bowling, were bound to take notice of the personal judgment that was entered of record against Urbanski, but they were not required to take notice of the memoranda of the judge of the findings and rendition of the judgment by the court, upon which the entered judgment might be corrected; and whatever rights they might have acquired between the original entering of the judgment and its correction nunc pro tunc, in making such order, it would have been proper to have expressly saved to them, **so as to allow them to be made available in any subsequent proceeding. **** We think that all their rights can be fully protected in any legitimate subsequent proceedings, without reversing the nunc pro tunc judgment against Urbanski." The case in hand is a "legitimate subsequent proceeding," and in and by the second paragraph of their answer herein appellants have clearly stated the legal and equitable defences which they acquired between the rendition of appellees' personal judgment only against Urbanski, on the 1st day of March, 1880, and the subsequent entry, nunc pro tunc, of the judgment or order for the sale of the attached property on the 6th day of June, 1881, to appellees' suit herein against the sureties of Urbanski in the undertaking given by him in appellees' attachment proceedings for the delivery of the attached property. We are clearly of opinion that the facts stated by appellants in the second paragraph of their answer constitute a full and complete bar to the cause of action which appellees attempted to state in the second paragraph of their complaint herein; and that it was error, therefore, to sustain their demurrer to such second paragraph of appellants' answer. The judgment is reversed, with costs, and the cause is remanded, with instructions to overrule the demurrer to the Dickerson, Administrator, v. Davis et al. second paragraph of answer, and to sustain the demurrer to the second paragraph of complaint, and for further proceedings not inconsistent with this opinion. Filed May 24, 1887; petition for a rehearing overruled Sept. 27, 1887. No. 12,767. DICKERSON, ADMINISTRATOR, v. DAVIS ET AL. 111 433 156 286 111 433 JUDGMENT.—By Default Against Insane Person.-Suit to Set Aside.-Mistake. 158 100 -Guardian and Ward.-Promissory Note.—Innocent Holder. - Fraud.Consideration.-Where a judgment by default is taken against a person of unsound mind, after due service of process, by a good-faith holder of a commercial note, which had been obtained by the original payee from the defendant by fraud and without consideration, it may be set aside under section 396, R. S. 1881, at the suit of the guardian or administrator, and the latter let in to defend, by showing that the defendant was of unsound mind when he executed the note, and that it was without consideration, although the plaintiff practiced no fraud in obtaining the judgment and had no knowledge of the defendant's insanity, which had not been judicially declared. SAME-Collateral Proceeding in Aid of Execution.-Will not Defeat Right to Relief from Judgment.—The right to obtain relief from a judgment under section 396 can not be defeated by the plaintiff instituting proceedings in aid of an execution, to enforce the judgment from which the defendant, by appropriate proceedings then pending, is seeking to be relieved. SAME.--Sale.-Redemption by Guardian.—The fact that the guardian of an insane person, against whom a judgment has been wrongfully obtained, to save his ward's property, redeems from a sale thereof under proceedings to enforce the judgment instituted during the pendency of a complaint to set it aside, is not a bar to relief under section 396. SAME.-Wrongful Judgment.-Enforcement.-Effect of Setting Aside.-One who proceeds with the enforcement of a judgment wrongfully obtained, with knowledge that proceedings have been instituted by or on behalf of the defendant to be relieved therefrom, assumes the risk that, if the judg ment be set aside, he will be compelled to restore to his adversary whatever has been so coerced from him. From the Boone Circuit Court. VOL. 111.-28 Dickerson, Administrator, v. Davis et al. J. A. Abbott and I. M. Kelsey, for appellant. MITCHELL, J.-Lewis recovered a judgment by default in the Boone Circuit Court against Garrett McClain for $82.67. The judgment was afterwards assigned to Isaac T. Davis. Subsequently, McClain was declared to be a person of unsound mind, and his guardian, in that behalf appointed, commenced this proceeding to set aside the default. He charged, in the complaint filed for that purpose, that his ward was a person of unsound mind, and that the note on which the judgment had been rendered had been obtained from Garrett McClain by fraud while he was of unsound mind, without any consideration. This complaint was held insufficient on demurrer. The guardian appealed to this court, and the ruling and judgment of the court below were reversed. McClain v. Davis, 77 Ind. 419. When the case was returned to the court below, Garrett McClain having died meanwhile, Dickerson, as administrator of his estate, filed an amended and supplemental complaint. This complaint put forward substantially the same facts in respect to the note and the unsoundness of mind of the maker as were set forth in the original. In addition to these facts, it was also alleged that, pending the appeal, certain real estate owned by the intestate had been sold to satisfy the judgment in question, and that the guardian of the intestate had been compelled to pay to the appellee Davis, the full amount of the judgment, interest and costs in order to redeem the insane ward's land from the sale so made. The prayer was that the default and judgment should be set aside, and that the plaintiff, as administrator, might recover the amount which the guardian had been compelled to pay in order to redeem from the sale. Upon issues duly made the court heard the evidence and found the facts specially. The finding is, in substance, that the note in question was executed without consideration, Dickerson, Administrator, v. Davis et al. payable at a bank in this State, and that the maker was, at the time of its execution, and so continued until his death, a person of unsound mind. It is found that a judgment was taken on this note by default on the 28th day of November, 1877. The owner of the judgment was found to have purchased the note in good faith, for a valuable consideration, before its maturity. After judgment had been taken on the note, in the manner alleged in the complaint, the appellee Davis, being the owner of the judgment, instituted an action in the Boone Circuit Court to set aside an alleged fraudulent conveyance of certain real estate from Garrett McClain to his wife. The court found that the guardian of Garrett McClain set up as a defence to the action so instituted substantially the same facts in reference to the execution of the note and the unsoundness of mind of Garrett McClain as are set up in the complaint in this case. He also alleged in his answer, that he had instituted and then had pending a proceeding to set aside the judgment which the appellee was seeking to enforce. Such proceedings were had in that behalf as that, upon a trial of the issues therein joined, there was a finding and judgment for the plaintiff, and an order that the conveyance be set aside and the land subjected to sale to satisfy the judgment. The land was accordingly sold, the appellee herein bidding it in for the full amount of the judgment, interest and costs. It is found by the court that the guardian of the judgment defendant, within the year for redemption, redeemed the land by paying the amount of the bid and interest thereon. Upon the facts so found the court stated as its conclusion that the appellant was not entitled to have the judgment set aside, or to any other relief. Judgment was given accordingly. The case presented is one in which a judgment by default was taken against a person of unsound mind, presumably after due service of process, by a good-faith holder of a commercial note which had been obtained by fraud and with Dickerson, Administrator, v. Davis et al. out consideration by the original payee. No fraud or unfairness in obtaining the judgment is either alleged or found, nor does it appear that the holder of the note had any knowledge or reason to suspect that the maker was insane at the time the judgment was taken. The defendant not having been judicially declared to be a person of unsound mind at the time the contract was made and the judgment taken, the question is, will the default be set aside as against a good-faith purchaser of the note, and the guardian or administrator let in to defend, by simply showing that his ward was of unsound mind when the note was executed and the judgment taken, and that the note was without consideration? The proceeding was commenced under section 396, R. S. 1881. This section provides, among other things, that a party may be relieved from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect, on complaint or motion filed within two years. That there was a meritorious defence to the action is clear. The note was obtained by fraud from a person of unsound mind, without any consideration. That the holder of the note and judgment plaintiff was an endorsee for value, without notice, does not alter the case. The maker of the note, being at the time of unsound mind, had no capacity to bind himself by contract. A purchaser of commercial paper is affected with notice of the status or disability of the maker. That the note was purchased in good faith before maturity presents no obstacle to a disaffirmance in case the maker had not the mental capacity to bind himself by contract, unless the note was originally taken in good faith upon a consideration which was reasonably necessary for, or actually beneficial to, the maker. Physio-Medical College v. Wilkinson, 108 Ind. 314; Baxter v. Earl of Portsmouth, 5 Barn. & Cres. 170; Dane v. Kirkwall, 8 C. & P. 679; Seaver v. Phelps, 11 Pick. 304; Buswell Insanity, section 290. The protection of persons who are so unfortunate as to be |